Discussion of the quotation from Advocate General Jacobs in Unión de Pequeños Agricultores v. Council.
The quotation from Advocate General Jacobs in Unión de Pequeños Agricultores v. Council arises as a result of a challenge to annul a regulation that had an adverse impact upon their businesses. The issues before the court were whether the requirements that for applicants to have sufficient Locus Standi to bring such an action the measure contested must be of “Direct and individual concern” to the applicants.
The starting point in discussing the context of the quote is to establish what requirements must be met in order for such an action to be brought under Art 230. Firstly, there are three categories of applicants, Privileged, including Member States, The Council or Commission; those institutions protecting their prerogatives such as the European Parliament and European Central Bank, who all have standing and those, as in the present case, that concern individuals or Non-Privileged applicants who must establish such standing.
In order for individuals or non-privileged applicants to acquire the necessary standing three facts must be present; the measure must be a “decision”, it must be of direct concern to the applicant, and it must be of individual concern to the applicant.
A “Decision” has a far wider definition than that under Art 249 EC (Measures binding in their entirety upon those to whom it is addressed) and may include the “decision” to close a file or not to pursue a course of action. It may be said that any measure of the institutions of the EC having legal effect will fall under Art 230 as a reviewable act unless they are not acting as such a body.
The meaning of “Direct Concern” relates not to the gravity of the impairment suffered by the applicant or that there exists a connection between the act and the applicant, but that it produces an immediate, automatic and inevitable legal consequence upon him. Should a measure be of “indirect” concern, then it will require the intervention of a third party with another, separate, power to impose the measure upon the applicant and therefore fall outwit the scope of reviewable acts. For example, the decision of the commission to issue licences for the importation of goods will be of direct concern while if the decision to issue a licence is at the discretion of a national agency then the direct concern is more difficult to establish.
Of note is that should a party who is able to demonstrate direct concern fail to bring an action within two months of becoming aware of the decision then he will not only loose the right to challenge the act directly, but also, should he bring an action in the national court, the ECJ will decline to consider a preliminary reference procedure under Art 234, however, Art 234 may cause its own problems as will be presently discussed.
The final requirement, “individual concern”, is the one that has caused the most problems and perhaps the most injustice and is the subject of A.G Jacobs quote.
Individual concern was first considered in the case of Plaumann, here, the court was required to consider whether an importer of clementines who challenged a decision of the commission not to suspend customs duty was “individually concerned”. The court held that he was not as the decision affected all importers of clementines into Germany and despite the fact that he was a member of a certain class, he did not possess “…certain attributes which are peculiar to [him] or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually…” This decision has become the leading case on the issue and creates an almost insurmountable obstacle to the individual who wishes to challenge a measure that affects his interests. The problems are well illustrated by Craig and De Burca who argue that the strict application of this test means that it is virtually impossible for any applicant to ever succeed in challenging a measure that has a future consequence for him, as whenever the test is applied, the applicant will fail. For instance, if the test is applied when the application is lodged then there exists the possibility that others may join the class at some time in the future. If the test is applied at some future date, then the applicant would be faced with the same argument. Even if the applicant was the only person concerned (unique and one would therefore suppose the test would be fulfilled) the courts may, by the same reasoning as in Plaumann, decide that another person may join this class in future and therefore the test fails. The only circumstances where applicants have succeeded appear to be those where the “class” is completely defined and “closed” at a particular point in time and no further additions to the class are possible or where the applicant has been instrumental in bringing about the measure and so therefore may say it is addressed to him personally.
